LUNDY v. BORDON CHEMICAL CO., 45 Or. App. 867 (1980)

609 P.2d 1307

No. 78-5797, CA 15987Oregon Court of Appeals.Argued and submitted March 12, 1980
Affirmed April 14, 1980 Reconsideration denied May 22, 1980 Petition for review denied July 17, 1980 (289 Or. 373)

Judicial Review from Workers’ Compensation Board.

Thomas A. Huntsberger, Springfield, argued the cause for petitioner. With him on the brief was Ackerman DeWenter, Springfield.

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Ridgway K. Foley, Jr., Portland, argued the cause for respondent. With him on the brief were Schwabe, Williamson, Wyatt, Moore Roberts and Roger A. Luedtke, Portland.

Before Gillette, Presiding Judge, and Roberts and Campbell, Judges.

GILLETTE, P. J.

Affirmed.

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GILLETTE, P. J.

The issue in this Workers’ Compensation case is whether the claimant’s overtime hours should be included in computing his temporary total disability payments. The referee held that claimant’s overtime work should be included in determining his daily wage. ORS 656.210, infra. The Workers’ Compensation Board reversed. We affirm the Board.

This case was tried on stipulated facts. As the Board stressed, the parties agreed that “overtime that wa regular and required by Borden Chemical Company should be included in the computation of [claimant’s] daily wage for the purpose of determining temporary total disability compensation.” (Emphasis added). See ORS 656.210(2).

Claimant’s overtime work was “required.” The parties stipulated that, during the period preceding claimant’s injury, he had to work overtime when the employe who filled claimant’s job on the next shift “was not available to begin work at the start of the * * * shift.”

The determinative question, then, is whether the overtime was “regular.” The referee and the Board differed in their approaches to this problem.

While the parties stipulated that overtime had to be “regular” to be included, they did not define that term. Since the parties had not defined “regular,” the referee looked to the temporary total disability statute, ORS 656.210, which provides that “* * * ‘regularly employed’ means actual employment or availability for such employment.” The referee concluded that, under ORS 656.210, “regular” means “actual.” He reasoned that “[s]ince the claimant worked the hours, [the overtime] was was ‘actual employment,’ even though it was erratic.” The referee then computed the claimant’s daily wage by averaging “a reasonable statistical sample of [claimant’s pre-injury overtime] work history.”

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We disagree with the referee’s approach. We do not need to decide whether the referee’s reading of ORS 656.210 was accurate because we find that the referee’s use of the statute in his interpretation of the parties’ stipulation was inappropriate.

The parties agreed that, to be included in the computation of TTD, overtime had to be “regular.” The parties did not stipulate that “regular” should be defined with reference to ORS 656.210.[1] The parties’ agreement that overtime should be “regular” and “required” is not drawn in the language of the statute. The statute does not define “regular”; rather, it assigns a specific meaning to “regularly employed.” The statute uses “regularly employed” only with reference to the number of days that a worker “regularly” works per week.

We find that “regular,” as used in the stipulation, is not a cross-reference to “regularly employed,” as that

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term is defined in ORS 656.210(2). The referee’s interpretation of the parties’ stipulation by resorting to the statute therefore amounts to ignoring the stipulation. The parties tried this case pursuant to their stipulation. They should not be permitted to abandon the stipulation on appeal. See Leiser v. Sparkman, 281 Or. 119, 573 P.2d 1247 (1978).

The parties use of the term “regular,” without any special definition, indicates that the parties intended that “regular” have its normal meaning. It is not a term of art in Workers’ Compensation law. If the parties had wanted regular to have some particular, unique meaning, they would have defined it in the stipulation.

“Regular” is synonymous with “normal” or “typical.” The term implies conformity to some standard, or to an established pattern. Webster’s Third New International Dictionary (1976).

Both the referee and the Board described claimant’s overtime as “erratic.” The parties’ stipulation as to the amount of overtime claimant worked during the period preceding his injury is set out in the margin.[2]

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The claimant’s overtime hours varied, and followed no pattern. During some weeks, the claimant worked no overtime. During other weeks, he worked minimal to substantial amounts of overtime. The Board concluded that claimant’s overtime work was irregular and unpredictable.

We agree. This “erratic” pattern of overtime is not “regular.” The parties agreed that, to be included in determining the rate of TTD payments, overtime had to be regular. The claimant failed to prove that his overtime work fit within this stipulated test.[3]

Affirmed.

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